The opinion of the court was delivered by: Urbina, District Judge.
DENYING THE PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING
ORDER; DENYING THE PLAINTIFF'S MOTION FOR A PRELIMINARY
INJUNCTION, AND; DENYING AS MOOT THE DEFENDANTS' MOTION TO
DISMISS WITH PREJUDICE
This matter comes before the court on Role Models America,
Inc.'s ("the plaintiff") motions for a temporary restraining
order and preliminary injunction, and the defendants' motion to
dismiss the complaint with prejudice, After consideration of the
parties' submissions and relevant law, the court concludes that
the plaintiff has failed to sufficiently demonstrate that it has
a substantial likelihood of success on the merits, that it will
be irreparably harmed, that the balance of hardships favors the
issuance of an injunction, or that the public interest will be
furthered if the court were to grant the injunctive relief
requested. Accordingly, the court will deny the plaintiffs
motions for injunctive relief and deny as moot the defendants'
motion to dismiss with prejudice, along with the other various
motions that have been subsequently filed by the plaintiff.
By way of background, the dispute in this case is centered
around the disposal of surplus military property that is part of
Fort Ritchie Military Reservation, located in Washington County,
northeast of Hagerstown, in the community of Cascade, Maryland
at the intersection of Routes 500 and 491. See Def.'s Ex. 1.
The Fort Ritchie property is available under the provisions of
the Federal Property and Administrative Services Act of 1945, as
amended 40 U.S.C. § 484(k), and the Base Closure Community
Redevelopment and Homeless Act of 1994, as amended
10 U.S.C. § 2687. See id. The surplus real property at Fort Ritchie
(hereinafter "the surplus property") encompasses approximately
635.65 acres and contains 252 buildings, totaling 1,384,000
square feet of space. See id. The current range of uses of the
surplus property includes administrative, residential, retail,
open recreation, and special purpose space. See id.
The plaintiff is a Maryland 501(c)(3) non-profit corporation
with its principal place of business in Cascade, Maryland. See
Compl. ¶ 3. Its objective is to establish and operate a national
model Junior Reserve Officers Training Corps college-preparatory
magnet school for the nation's high school "drop-outs." See
id. Congress funds the plaintiff's program through the U.S.
Department of Labor. See Pl.'s Ex. 16. The plaintiff intends
to build military-style schools using surplus property from
military base closures, which provide the facilities needed to
operate a large residential program of this type. See id.
On March 10, 2000, the plaintiff entered into a sublease
agreement with Pen Mar for use of the surplus property. See
Pl.'s Ex. 9. The terms of that agreement require the plaintiff
to pay Pen Mar $1,265,955.00 per year in quarterly installments
of $316,498.75 for approximately 275,000 square feet of space.
See id. ¶ 1.7. The agreement further provides both parties
with the option to extend the lease. See id. ¶ 1.4. Moreover,
the parties noted in the agreement that Pen Mar is acquiring
full title to the Fort Ritchie property. See id. ¶ 1.2.
Defendant Thomas E. White,*fn1 Secretary of the Army, is
named as a defendant in this action in his official capacity
along with the Army (collectively "the defendants"). See
Compl. ¶ 4. The defendants plan on transferring nearly 280 acres
to Pen Mar in the first phase of the Fort Ritchie comprehensive
redevelopment plan. See Pl.'s Mot. for Expedited Consideration
("Pl.'s Mot. for Exped. Consid."), Ex. 2.
As of April 2001, Pen Mar had at least two pending suits
against the plaintiff in Maryland courts respecting Fort
Ritchie. See Compl. ¶ 29. The first suit concerns Pen Mar's
alleged return of the plaintiff's rent check and a subsequent
action against the plaintiff for eviction and back payment in
Maryland state court. See id. The second suit concerns the
improper display of flags at Fort Ritchie. See id.
The plaintiff seeks to acquire the Fort Ritchie property
through a public benefit conveyance pursuant to the Base Closure
Act of 1994, as amended 10 U.S.C. § 2687. See Compl. ¶ 32. The
plaintiff fears that the defendants will resume negotiations
with Pen Mar for execution of the memorandum of agreement for
property transfer at Fort Ritchie. See generally Pl.'s Reply
Mem. in Supp. of Mot. for Exped. Consid. The plaintiff contends
that conveyance of Fort Ritchie from the Army to Pen Mar would
cause irreparable harm to the plaintiff and its ability to
establish a successful program for at-risk youth. See Pl.'s
Mot. for a Preliminary Injunction ("Pl.'s Prelim. Inj. Mot.") ¶
6. As such, the plaintiff requests that the court order the
defendants to re-open the screening process at Fort Ritchie.
See Compl. at 1, 10. In the alternative, the plaintiff asks
the court to order the Army to directly convey the property to
the plaintiff as a public benefit conveyance. See id.
Accordingly, the plaintiff seeks a temporary restraining order
injunction preventing the Army from transferring Fort Ritchie to
Pen Mar. See id. ¶ 3.
The defendants counter the plaintiff's allegations by arguing
three points. First, the defendants argue that the plaintiff
cannot show irreparable harm because the plaintiff will continue
to operate its Academy under the lease term negotiated in March
2000. See Def.'s Opp'n ¶ A. Second, the defendants assert that
this court lacks jurisdiction because the matter is not ripe for
judicial review. See id. ¶ B. On this second point, the
defendants state that final agency action has not occurred and
that the property has not yet been transferred to Pen Mar. See
id. Third, the defendants contend that the plaintiff received
proper and adequate notice of the availability of the surplus
property since the screening process was properly conducted
within the meaning of the Base Closure Act. See id. ¶ C.
By way of procedural history in the case, on July 24, 2001,
the plaintiff filed its complaint alleging the following in
support of a temporary restraining order and preliminary
injunction: (1) the Army violated Base Closure laws,
specifically the Base Closure Act of 1994 ("BCA"), as amended
10 U.S.C. § 2687, and the Administrative Procedure Act ("APA"), as
amended 5 U.S.C. § 701 et. seq., by negotiating a transfer of
the Fort Ritchie property with Pen Mar, thus triggering a final
agency action; (2) the Army violated the BCA and the APA by
improper notification of the availability of the surplus
property, and; (3) the Army violated the BCA and the APA by
conducting an improper screening process of the Fort Ritchie
property. The complaint further claims that the Army's actions
were arbitrary and capricious, an abuse of discretion, and
contrary to law in violation of the BCA and the APA.
On July 25, 2001, the defendants filed an opposition to the
plaintiffs motion for a preliminary injunction. The defendants'
opposition states that the Army's actions were not arbitrary and
capricious, nor contrary to applicable law. Moreover, the Army
contends that it conducted the screening process, notice, and
lease in compliance with the directives of the BCA. On August 1,
2001, the plaintiff filed a reply reiterating its challenge to
the final agency action under the APA for failure to give proper
notice and for inadequate conduct of the screening process. On
September 25, 2001, the defendants filed a "motion to dismiss or
transfer for improper venue, alternatively, to dismiss as unripe
for review, or to dismiss in part for failure to state a claim
to which relief is entitled, or for summary judgment." On
October 11, 2001, the plaintiff filed a "motion for expedited
consideration of the plaintiffs motion for a preliminary
injunction, to schedule a hearing on the plaintiffs motions, and
for production of documents."*fn2
The court now turns to these motions and for the reasons that
follow, the court denies the plaintiffs motions for a temporary
restraining order and preliminary injunction. Additionally, the
court denies as moot the defendants' motion to dismiss ...